Re JRC [2015] NSWSC 1038

Supreme Court New South Wales

Medium Neutral Citation: Re JRC [2015] NSWSC 1038 Hearing dates: In Chambers Date of orders: 29 July 2015 Decision date: 29 July 2015 Jurisdiction: Equity Division - Adoption List Before: Darke J Decision: Consent dispense order made. Order made for adoption of child. Catchwords: FAMILY LAW AND CHILD WELFARE – adoption – requirement of parental consent – father gives consent but not in accordance with requirements of Adoption Act – whether requirement for consent should be dispensed with – whether serious cause for concern for welfare of child – whether in best interests of child to override the wishes of the parent – meaning of "override the wishes" – Adoption Act 2000 (NSW) s 67(1)(c) Legislation Cited: Adoption Act 2000 (NSW) ss 52, 53(b), 54(1)(b), 58, 59(1), 61, 67, 72(2)(c), 90(1)(d), 91 Cases Cited: Application of DOCS re C [2004] NSWSC 702 Director-General, Department of Human Services; re DAM [2011] NSWSC 634 Category: Principal judgment Parties: DNT and ALT (plaintiffs) Representation: Solicitors: Wiggins Cheffings (plaintiffs) File Number(s): A191/2014 Publication restriction: Nil.

Judgment 1. By a Summons filed on 3 December 2014, the plaintiffs, DNT and ALT, seek an order under the Adoption Act 2000 (NSW) ("the Act") for the adoption of a child, JRC. JRC is 10 years of age. DNT and ALT are a married couple. ALT is the mother of JRC. 2. The evidence in support of the application consists of affidavits sworn by each of the plaintiffs, a report of an approved assessor pursuant to s 91 of the Act, affidavits sworn by two character referees, and an affidavit sworn by JRC's father. 3. Section 52 of the Act provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age and who has not been previously adopted unless consent has been given by each parent of the child. Such consent is not required if the parent is a proposed adoptive parent (see s 54(1)(b) of the Act). 4. In certain circumstances, the Court can make an order, described as a consent dispense order, dispensing with the requirement for consent to an adoption. Relevantly, s 67 of the Act confers a power on the Court to make a consent dispense order in relation to the requirement for consent by a parent if the Court is satisfied of certain matters. 5. As ALT is a proposed adoptive parent, her consent to the adoption is not required. The requirement of consent by JRC's father remains. 6. JRC's father has given a consent to the adoption of JRC by the plaintiffs. His consent takes the form of a specific consent (see s 53(b) of the Act). Prior to the giving of the consent, JRC's father received the mandatory written information as required by s 59(1) of the Act. However, prior to the giving of the consent, he did not receive counselling as required by s 61 of the Act, and hence the form of consent does not contain the required certification from a counsellor. In these circumstances, even though the consent appears to be an informed one, it is not one given in accordance with the Act, and is not effective (see s 58 of the Act). Neither is the consent given by JRC's father in his affidavit in which he deposes to the effect: 1. that due to financial trouble he is not able to afford the counselling that he has to have in order for the adoption to proceed; 2. that he has thought about the adoption for three to four years, and has read the mandatory information, and still strongly agrees that the adoption is the best way to go for JRC; 3. that he would like JRC to be part of the plaintiffs' family and take their last names; 4. that he has not had contact with JRC for more than three years, and believes that contact would only cause confusion for JRC; 5. that he would be happy to be contacted by JRC in later years, but whether that occurs should be left up to JRC; and 6. the he has not been influenced or pressured into supporting the adoption, the decision being completely his. 1. I further note that the approved assessor's report indicates that JRC's father told the assessor that he had read and understood the mandatory information, which had encouraged him to look at alternative orders, but he thought that adoption was the most appropriate order for JRC. 2. The Court must not make an adoption order in relation to a child unless the Court is satisfied, inter alia, that consent has been given by every person whose consent is required under the Act or that consent has been, or should be, dispensed with (see s 90(1)(d) of the Act). 3. The consent given by JRC's father being ineffective, a question arises as to whether the requirement for his consent should be dispensed with. 4. The plaintiffs seek a consent dispense order under s 67(1)(a) of the Act. However, that provision only applies if the relevant person cannot, after reasonable inquiry, be found or identified. It is clearly not applicable here. Neither are the provisions of s 67(1)(b) and 67(1)(d). That leaves s 67(1)(c) which, in the case of the consent of a parent (or person who has parental responsibility for a child), permits a consent dispense order to be made if the Court is satisfied that there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent (or person who has parental responsibility). 5. There are cases where orders have been made under s 67(1)(c) in circumstances where a parent has not wanted to be involved in the adoption process. In Application of DOCS re C [2004] NSWSC 702, Austin J made such an order when a father refused to become involved in the adoption process. His Honour evidently considered that the order would aid the quick resolution of the matter in the child's best interests. 6. In Director-General, Department of Human Services; re DAM [2011] NSWSC 634, the father of the child had expressed support for the adoption of the child but was unwilling to give formal consent to the adoption in accordance with the requirements of the Act. Brereton J referred to Application of DOCS re C (supra) and stated (at [2]): "The circumstances are closely analogous to those considered by Austin J in Application of DOCS re C [2004] NSWSC 702. But for that decision, I would have doubted whether the requirements of s 67(1)(c), namely, that there be serious concern for the welfare of the child such that it is in the child's best interests to override the interests of the parent, was satisfied. But on the authority of Re C, I accept that in such circumstances it is open to make a consent dispense order: the "serious concern" is that the process of permanent placement in an adoptive family, which is in the child's best interests, will otherwise be delayed by any requirement for further involvement of the father in the proceedings, and the context is that although he did not consent in accordance with the Act, he in fact agrees to adoption, so that to the extent the father's wishes are being overridden at all, it is only in a very minor way. It should not be thought that mere delay in progressing an adoption would be "serious concern" sufficient to override a parent's wishes if those wishes were actually opposed to the adoption." 1. In my opinion, the evidence adduced in the present case in support of the adoption establishes that the adoption is clearly in the best interests of JRC. It is a serious cause for concern for JRC's welfare that the adoption be delayed or even thwarted by the absence of a consent given by his father in accordance with the Act. The evidence given by the father, which I accept, shows that whilst he is otherwise supportive of the adoption process, he has not obtained the required counselling due to very straightened financial circumstances. There is no evidence that this situation is likely to change for the better in the near future. In circumstances where the father appears to have given an informed consent, after receiving and considering the mandatory information, it is my view that it is in the best interests of JRC to override the wishes of his father. 2. The Macquarie Dictionary definition of "override" includes "to pursue one's course in disregard of". The expression "override the wishes" as found within s 67(1)(c) of the Act seems to me to be broad enough to encompass the notion of proceeding regardless of the wishes (whatever they may be) of the parent or person who has parental responsibility. It is not confined to the notion of proceeding in opposition to the expressed wishes of the parent or person who has parental responsibility. Of course, no consent dispense order can be made unless the Court is satisfied that it is in the best interests of the child to do so (see s 67(2) of the Act). 3. I consider that it is in the best interests of JRC for the adoption to proceed regardless of the wishes of his father which, whilst actually supportive, have not been expressed in the manner required by the Act. The Court will therefore make an order under s 67(1)(c) of the Act dispensing with the requirement that JRC's father give consent to the adoption in accordance with the Act. It does not appear that notice of the application for a consent dispense order has been given to JRC's father. However, in view of the clear evidence that JRC's father supports the adoption, this is a case where it is desirable to make the order without notice of the application being given to JRC's father (see s 72(2)(c) of the Act). 4. The Court will also make an order for adoption as sought by the plaintiffs. The order will include approval of the surname and given names of the child as sought by the plaintiffs.